BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON
ROBERTSON, JUSTICE, FOR THE COURT:
This appeal presents the question whether - and on what conditions - a party to a marriage may maintain an action for divorce on grounds of habitual cruel and inhuman treatment after having unsuccessfully sought on a previous date a divorce on the same grounds. The question arises in a combined factual and procedural context not heretofore considered by the Court.
On December 3, 1985, the Chancery Court of Hinds County, Mississippi, summarily dismissed the complaint for divorce of today's Appellant, Brenda Dianne Bias. That complaint had been filed on July 26, 1985, and had charged the Defendant, Jesse J. Bias, Jr., Appellee here,
with habitual cruel and inhuman treatment and with an irreconcilable differences as her grounds for divorce within the meaning
of the statute controlling the same. The provisions of Section 93-5-1, et seq. of the Mississippi Code (1972) are invoked as to these charges of grounds for a divorce.
The complaint further alleged that the parties had been married since November 7, 1972, and had permanently separated some twenty-two months earlier in September of 1983. The matter was adjudged in the Chancery Court upon Jesse Bias' motion to dismiss, the ground rules for the consideration of which emanate from Rules 8(a) and (e) and 12(b)(6), Miss.R.Civ.P. *fn1 See Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss. 1985).
This was not the first time Brenda had sought a divorce from Jesse on habitual cruel and inhuman treatment grounds. Brenda's first such complaint had been filed October 12, 1983, again in the Chancery Court of Hinds County. She had there alleged an October 5, 1983, permanent separation. Trial resulted in a final adjudication on June 14, 1984, dismissing Brenda's demand for divorce but settling child custody and support matters. The first proceeding formed the predicate for Jesse's argument that the present case should be dismissed summarily.
On October 30, 1985, the chancellor announced his decision dismissing the complaint. He reasoned that no offending conduct constituting the grounds for divorce could have caused the separation of the parties, the separation having occurred in September of 1983 and the previous divorce proceeding having been finally dismissed on June 14, 1984. The pleadings suggest that the parties did not live together for any part of the thirteen and a half month period between dismissal of the first complaint and the filing of the second.
From these premises, Jesse suggested and the chancellor accepted that the habitual cruel and inhuman treatment of Brenda by Jesse following June 14, 1984, could not have been the proximate cause of the (September 1983) separation. The chancellor further dismissed the complaint on grounds that the final adjudication in the first action was res judicata and that Brenda was collaterally estopped from relitigating the issue of habitual cruel and inhuman treatment.
The procedural posture of this case is vitally important to a correct understanding of today's decision. The chancellor proceeded without an evidentiary hearing and without presentation by the parties of any other form of evidence. What, and all, the chancellor had before him was Brenda's complaint, Jesse's motion to dismiss and, of course,
judicial knowledge of the prior proceedings. *fn2 In such a context a trial judge may not dismiss a complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Luckett v. Mississippi Wood, Inc., 481 So.2d 288, 290 (Miss. 1985); Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss. 1985).
In this context we consider that Brenda charges Jesse "with habitual cruel and inhuman treatment" . She invokes the provisions of Section 93-5-1, et seq., as authority for non-statement of the details of her charge. Thereafter, Brenda charges that Jesse
has continually harassed, abused and mistreated the Plaintiff both before and after the formal litigation, so much that the Plaintiff's health has been severely impaired.
We concentrate first upon the June 14, 1984 - July 26, 1985, period - from the dismissal of the first action and the filing of Brenda's second complaint. Having in mind the standards we employ in considering motions to dismiss, we do not consider it clear beyond reasonable doubt that, within that thirteen and a half month period of time, Jesse could have ...